R v Harrison[2015] QCA 210

COURT OF APPEAL

MARGARET McMURDO P

GOTTERSON JA

MORRISON JA

CA No 320 of 2014

SC No 75 of 2014

SC No 76 of 2014

THE QUEEN

v

HARRISON, Craig JamesApplicant

BRISBANE

THURSDAY, 29 OCTOBER 2015

JUDGMENT

THE PRESIDENT:  The applicant, Craig Harrison, pleaded guilty in the Supreme Court at Townsville on 27 November 2014 to 29 counts on an ex officio indictment: three counts of burglary and stealing (counts 1, 17 and 19); six counts of supplying dangerous drugs (counts 2 to 7); two counts of breaking, entering and stealing (counts 8 and 13); two counts of possessing a thing used in the commission of a crime (counts 9 and 20); two counts of unlawful possession of category D, H or R weapons (counts 10 and 11); four counts of possessing dangerous drugs (counts 12, 15, 18 and 28); unlawfully using a motor vehicle with damage (count 14); possessing a dangerous drug exceeding two grams (count 16); unlawful use of a motor vehicle to facilitate the commission of an indictable offence (count 21); attempted entering of premises with intent to commit an indictable offence (count 22); two counts of unlawful use of a motor vehicle (counts 23 and 25); two counts of fraud (counts 24 and 26); receiving stolen property with a circumstance of aggravation (count 27); and possessing things used in connection with unlawful entry with a circumstance of aggravation (count 29).

He also pleaded guilty to the following summary charges: two counts of failing to properly dispose of needle and syringe; obstructing police; three counts of possessing utensils or pipes used in the commission of an offence; unlawful possession of weapons; possessing explosives/ammunitions; two counts of possessing property suspected of being used in connection with drugs; and possession of a knife in public.

The offences were committed between 26 August 2013 and 12 January 2014.  He was 48 years old at the time of the offending and 49 years old when sentenced.  The following day he was sentenced to six years imprisonment on each of counts 1, 8, 13, 17 and 19 (the burglary and breaking and entering offences) and to lesser concurrent terms of imprisonment on the remaining indictable offences.  He was convicted but not further punished on the summary offences.  Three hundred and twenty days of pre-sentence custody was deemed time already served under the sentence.  As the judge did not set a parole eligibility date, this means the applicant under his present sentence will be eligible for parole after serving 50 per cent of that sentence, that is, after three years: see s 184(2) Corrective Services Act 2006 (Qld).

The applicant, who is now self-represented, has asked for leave to appeal and seeks to appeal on two grounds.  The first is that the sentence was manifestly excessive in all the circumstances.  The second is that the sentencing judge failed to appropriately recognise his plea of guilty.

The applicant has a shocking criminal history extending into 20 pages not only in this State but also in Victoria and New South Wales.  It began in Victoria when he was 12 years old in 1978 with entries for 12 counts of burglary and eight of theft.  In 1981, he was dealt with in the Beenleigh Childrens Court for four counts of breaking, entering and stealing and three counts of stealing.  In 1982, he was placed on 12 months probation.  He breached that probation by reoffending.  In 1983, aged only 17, he was first sentenced to imprisonment for drug and property offences.  Since then, he has continued to reoffend and to be sentenced to lengthy periods of imprisonment related to property and drug offences.  In 1994 and again in 1998 he was sentenced to lengthy periods of imprisonment.  This pattern continued with sentences of two years imprisonment in 2001.  In 2003, a two year sentence was wholly suspended for three years but he reoffended during the operational period.  A further four and a half year sentence was again fully suspended.  In 2005, he was sentenced to what seems to be an effective term of seven years imprisonment for offences including armed robbery with personal violence and deprivation of liberty.  The sentencing judge on that occasion referred to a psychological report relating to the applicant and that he was the product of an abusive background.  His next convictions related to drugs in 2011 and 2012 and 2013 and public nuisance offences in 2012 for which he was fined.

The circumstances of his present offending were set out in the tendered schedule of facts (exhibit 4).  It began on 26 August 2013 when he stole property from a residence in Kelso, Townsville.  His DNA was found on a drink bottle.  On 8 October 2013, when spoken to by police, he declined to be interviewed about this matter and was arrested (count 1).  The next offences in time were the six counts of low-level supplies of dangerous drugs between September and October 2013, evidenced by text messages found on his telephone, which was seized by police during the execution of a search warrant at his premises on 8 October 2013 (counts 2 to 7).  Count 8 was a break and enter of a storage shed at Hyde Park, Townsville.  The offenders used keys to bypass security.  They targeted electrical equipment and machinery valued at almost $25,000.  The applicant’s fingerprints were found on a plastic container inside the shed.  On 8 October, he was found in possession of the keys and also of a generator taken in the offence.  When a subsequent search warrant was executed on 31 October, further property from that offence was found in his possession.  He ultimately declined to be questioned.  His possession of the phone on that occasion constituted count 9.  Police also found him in possession of weapons including a fully loaded hand gun, a silencer and other similar items (counts 10 and 11) and 0.8 of a gram of methylamphetamine, drug utensils and scales (count 12).  He declined to be questioned about that matter.

On 13 October 2013, there was a forced entry of business premises at Garbutt near Townsville.  Machinery, electrical equipment and tools worth almost $5000 were stolen together with the complainant’s four-wheel drive vehicle.  The resulting damage and loss was $5,500.  The applicant was wearing gloves to avoid leaving fingerprints but his DNA was found on a latex glove that he left in the stolen car which linked him with these offences.  When a search warrant was executed on 8 December 2013 after the offence was committed, property from that offence and the car keys were located in his possession (counts 13 and 14).

When police executed the search warrant on 31 October, he was not present, but they seized a quantity of drugs (counts 15 and 16) and empty cryovac plastic bags (a summary offence).  The drugs included a crystal substance containing a small amount of methylone, a Schedule 2 drug (count 15) and 12.43 grams of crystals which on analysis were found to contain 8.665 grams of pure methylamphetamine.  The methylamphetamine crystals were of a high purity, almost 70 per cent, with a wholesale value of between $2,500 to $5,000.  He again declined to answer police questions about these matters.

Less than a month later on 25 November, a complainant’s home in Kelso was broken into and ransacked.  The offenders took a gun safe, electrical equipment and jewellery valued at $3,700.  The applicant’s fingerprints were found on a window.  He declined to be interviewed when later spoken to by police (count 17).  Another home at Kelso was burgled on 3 December with offenders taking jewellery valued at $16,000.  The applicant’s blood was found on the kitchen floor.  He again declined to be questioned about this offence (count 19).  On 4 December 2013, he was a passenger in a car intercepted by police.  He was found in possession of drugs and drug utensils (counts 18 and 20 and summary offences).  On 31 December 2013, the applicant was photographed on security footage driving a stolen car when he attempted to enter business premises in Garbutt.  The car was stolen from Heatley shortly beforehand.  Over the next couple of weeks, the applicant was seen driving three stolen cars, filling up at petrol stations using a credit card from one of the cars (counts 21 to 27).  Police and a police dog tracked him through the bush and he was arrested.  Drugs and housebreaking implements were found in his possession (counts 28 and 29) together with some cannabis (a summary offence).

The total loss and damage to all the complainants in the offending was in the order of $54,000.

The Prosecutor at sentence referred to R v Bryant (2007) 173 A Crim R 88, R v Gabbert [2010] QCA 133 and R v Kunst [2002] QCA 400.  He emphasised the sentencing principles of deterrence and community protection.

Defence counsel at sentence made the following submissions.  The applicant’s elderly father was present in court to support him.  The applicant’s mother died in August 2014 and his 25 year old son in July 2014.  A letter from the prison chaplain was tendered (exhibit 5) which stated that these events had had a profound effect on the applicant and he wanted to change his life and to become a worthwhile citizen.  He was concerned his father might die whilst he was in custody.  And he was also concerned about his two surviving children, aged 29 and 15.

The applicant, defence counsel contended, was diagnosed as a young boy with attention deficit hyperactive disorder and treated with an amphetamine-based medication.  He had an unsettled upbringing and became a ward of the State, at times living as a young person on the streets.  He was uneducated and unskilled and had been abusing drugs intravenously for many years.  He had hepatitis C.  He committed the property offences to obtain funds for drugs.  Defence counsel asked the judge to impose a global sentence of about five years imprisonment suspended after an unspecified appropriate period so that the applicant could spend time with his elderly and ailing father.

In sentencing the applicant, the primary judge noted the nature and number of offences to which he had pleaded guilty.  The applicant’s criminal history, his Honour understandably considered, showed he was an habitual criminal so that rehabilitation was illusory.  Community protection was a significant factor.  His Honour decided to impose a global head sentence to reflect the totality of the offending, rather than imposing cumulative sentences.  In light of the applicant’s criminal history and his propensity to reoffend when released, his Honour considered that it was not appropriate to set an early parole eligibility date.

The applicant, who is now self-represented, in his oral and written submissions contends that he only committed some of these offences.  The remaining offences were committed by someone from a motorcycle club.  He contended that his solicitor told him that if he pleaded guilty by ex officio indictment he would get a lighter sentence, in the order of five years suspended after 18 months.  This seemed a good idea as it would mean he could spend time with his father sooner and he did not want to lose another loved one.  He agreed that he had a terrible record and deserved punishment.  In his oral submissions, he conceded that the six year sentence was not excessive but he emphasised he has been offered a place in a Townsville rehabilitation centre and intends to avail himself of this when released from prison to help him address his offending and change his ways.  He contended that losing his mother and son has really hit him hard.  He feels he would have received a lesser sentence had he gone to trial.  He was also concerned about another son who was struggling with grief and needed his help.

In terms of the applicant’s contentions as to his plea of guilty, it is clear from his oral submissions that he clearly accepted sound legal advice given to him in determining to plead guilty to all these counts.  The fact that he received a heavier sentence than he expected does not detract from the fact that he entered a free and informed plea of guilty which binds him.  To be fair to him, he accepted that in his oral submissions.

The judge in his sentencing remarks referred to the fact that the applicant had pleaded guilty, but his Honour did not comply with s 13 Penalties and Sentences Act 1992 (Qld), which required him to both take the guilty plea into account and state that he did so in open court.  Under s 13(5) Penalties and Sentences Act, a sentence is not invalid merely because of the failure to do this; but the fact that the judge did not do these things may be considered by an appeal court, if an appeal against sentence is made, as here.

A guilty plea to multiple counts by way of ex officio indictment, as occurred in this case, is a significant mitigating factor.  Indeed, in this instance it was the only real mitigating factor.  The judge should have taken this factor into account and stated he was doing so by ameliorating the sentence imposed in some way.  The guilty plea by way of ex officio indictment demonstrates some remorse and insight, insofar as it is a willingness to accept responsibility for criminal behaviour.  But, more relevantly, particularly in this case, there was significant cooperation with the authorities, without which the State would have had to conduct a number of lengthy and costly trials.

As long as the sentence imposed is not manifestly excessive or inadequate, a sentencing judge can reflect the mitigating benefit of guilty pleas either by setting an early parole eligibility date or suspension of the sentence, or by reducing the head sentence, or by both reducing the head sentence and allowing for early release: see R v Hicks & Taylor [2011] QCA 207, [34].  The judge made it clear he did not consider early parole eligibility was appropriate because of the applicant’s propensity to reoffend.  But the judge did not explain, in terms, that he was taking the pleas of guilty to charges on an ex officio indictment into account or how he was doing this.  This is an essential part of the transparency of the sentencing process: see R v Woods [2004] QCA 204, [7] – [10].

Counsel for the respondent valiantly tried to defend the sentencing judge’s approach by encouraging this Court to infer that his Honour took the guilty pleas into account by his reference to Bryant; this showed that the judge considered a higher sentence than that suggested in Bryant could have been imposed in this case.  I am unpersuaded that those observations of the sentencing judge warrant the drawing of such an inference.  In this case, the judge’s failure to state how he was taking the guilty pleas to charges on an ex officio indictment into account means that the sentencing discretion miscarried and this Court must re-sentence.

Bryant, and the analysis in that case of many other sentences imposed by the Court of Appeal for multiple property offences, clearly demonstrates that the six year sentence imposed in this case was not manifestly excessive, given the number of offences; the fact that the applicant also committed drug offences; the value of the property lost or damaged; the applicant’s mature age; and his shocking criminal history demonstrating his serial recidivism.  In particular, a six year sentence was supported by R v Faramus [1999] QCA 167, and the more recent decision of R v Heginbotham, McCartney & Room [2008] QCA 47.

While a sentence in the range of six years imprisonment was open, it was not the only sentence appropriate in the circumstances.  The difficulty with imposing a sentence of that kind is that, in light of the applicant’s recidivism, it is quite likely that he will serve all of that term of imprisonment and will be released into the community with neither supervision nor restraints on his behaviour.

For that reason I consider a head sentence appropriately reflecting the appellant’s guilty plea by way of ex officio indictment to recognise all his offending was one of five years imprisonment.  In imposing that sentence I am reducing the head sentence to reflect his guilty plea and acting on the fact that any early parole recommendation would be most unlikely to be acted on.  In imposing a comparatively modest head sentence of that kind, I would tailor this with a later than usual suspension of his sentence, in light of the applicant’s many years of recidivist offending.  To suspend his sentence two years earlier than the full-time release date, however, would both recognise his appalling criminal history and recidivism and unpromising future prospects, and also ensure that when he is released into the community he will have the Sword of Damocles hanging over his head for two years.  If he does not do as he claims he will and rehabilitate himself and instead relapses into crime, he will be quickly returned to prison to serve the rest of his sentence, together with any sentence imposed for other criminal behaviour.  This case falls into that unusual category of cases where it is appropriate for a court to suspend the sentence after the halfway point, here, after three years.

For these reasons I would grant the application for leave to appeal and allow the appeal to the extent of setting aside the sentences of six years imposed on counts 1, 8, 13, 17 and 19.  I would substitute sentences of five years imprisonment, to be suspended after three years, with an operational period of five years.  I would otherwise confirm the sentences imposed at first instance.

GOTTERSON JA:  I agree.

MORRISON JA:  I also agree.

THE PRESIDENT:  The orders are as I have outlined.